Previously, I wrote about one trick insurance companies use to deny benefits, when they deceptively structure the attending physician’s form so the insurance company can claim it shows the patient can do the job, even though the doctor intended to state that the patient could not perform the job. A doctor could fill out the form properly for a bed-ridden paraplegic but the insurer could interpret it as allowing the person to perform a sedentary job.
I recently saw another insurance company trick in a LTD ERISA appeal for a Westchester County client who was disabled by migraines. The basis for the denial was the same as I’ve seen in almost every case of disability based on migraines: the medical records did not address the frequency, duration and intensity of the headaches, so there was no proof the migraines were disabling. Given that this was the basis for the denial, in reviewing the claim file, I expected to see the insurer asking the doctors about the frequency, duration and intensity of the headaches.
What I found instead was that even though the insurer had sent detailed questionnaires to the three treating physicians, none of the questionnaires asked about the frequency, duration or intensity of the headaches suffered by my client! Why didn’t the insurer ask for the frequency, duration and intensity information that it claimed was crucial to establishing disability? Do you think that the insurance company didn’t want to get the right information from the doctors, and deliberately asked for the wrong information so it could deny benefits?
I will be able to help this migraine disability client. I have ways to establish frequency, duration and intensity, and to prove that the migraines prevent the person from performing their job. Also, since most of my ERISA appeal practice is in in Connecticut and Westchester County, I have worked with her doctors before, so I know we can work together to prove the client’s disability from migraines. This is an example of two things to remember when choosing a LTD appeal lawyer for any type of condition:
• Choose a lawyer who has substantial of experience with ERISA LTD appeals so he or she knows how to prove disability with your particular condition; and
• Choose a local lawyer who may have dealt with your doctors before. Knowing how a specific doctor works, what they want to see from the lawyer, and how responsive they are quite helpful in winning an ERISA LTD appeal.
The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments. By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.
Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard. The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing. The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors. This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.
Why would a patient lie to her doctor? The insurers never say, but there are only two possibilities:
- the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or
- the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing. In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."
Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.
But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment? When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints. Kelly
v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932
(D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's
chronic and severe pain under the apparent theory that MRIs or EMGs must
demonstrate some structural deformity for a person to be disabled because of
back pain. Unfortunately for all parties involved, back pain, even severe
pain, is not so simple.")
But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain. Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions. A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady. And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.
The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence. Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true. Some courts have accepted this analogy. Lasser
v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform
him of his daily activities in order to obtain an effective program of
rehabilitation. Indeed, it is based on this indicium of reliability that such
out-of-court statements by Dr. Lasser would be admissible under the Federal
Rules of Evidence.”).
In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it. The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar. We'll see if Connecticut federal courts will start turning the tables and require insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.
In handling ERISA benefit denials in Connecticut for more than twenty years, I've observed a big change in the grounds insurance companies give for denying benefits under group disability plans governed by ERISA. In handling ERISA benefit denials in the 1990s, the issue of diagnosis was often central to the appeal: did the medical records establish that the claimant was properly diagnosed with the condition that caused the disability? This often occurred with conditions like fibromyalgia, chronic fatigue syndrome, myofascial pain syndrome, migraine and other conditions that depend, in whole or part, on subjective reports of condition. The appeals mainly concerned whether the claimant had satisfied the specific diagnostic factors for the condition, such as for fibromyalgia, arguing whether the medical records showed that the claimant had 12 or 18 tender points as required by the American College of Rheumatology diagnostic factors.
The insurers got smarter, though. Rather than claim that there is not objective evidence of the diagnosis, over the last decade or so they acknowledge that the condition was properly diagnosed but are denying benefits on the basis that there is not objective evidence of the impairment. It is more common for the insurer to concede that a claimant has a condition like fibromyalgia or myofascial pain syndrome, but then state that “diagnosis does not equal disability.” They then state that the absence of objective medical evidence of disabling impairments is evidence that there is no disability.
Therefore, the focus has to be on proving the impairment rather than proving the diagnosis. In appealing ERISA long-term disability denials with the plan or in suing the insurance company in court, you must keep the focus on proving the impairments, and how those impairments keep the claimant from performing specific aspects of the job. How to prove impairment from conditions that depend on a subjective report of pain or impairment will be the subject of many future posts
